Tassone v Victorian WorkCover Authority

[2024] VCC 1193

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CI-23-05983

Roberto Tassone	Plaintiff
v
Victorian Workcover Authority	Defendant

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	15 July 2024
DATE OF JUDGMENT:	9 August 2024
CASE MAY BE CITED AS:	Tassone v Victorian Workcover Authority
MEDIUM NEUTRAL CITATION:	[2024] VCC 1193

REASONS FOR JUDGMENT
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Subject:WORKPLACE ACCIDENT COMPENSATION

Catchwords:              Serious injury – sub-paragraphs (a) and (b) of the definition of “serious injury” – left leg and right leg injury - scarring – pain and suffering only

Legislation Cited:      Workplace Injury Rehabilitation and Compensation Act 2013 (Vic)

Cases Cited:Transport Accident Commission v Garcia [2015] VSCA 225

Judgment:                  Application dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C Harrison KC Mr S Loftus	Costanzo Lawyers
For the Defendant	Ms A Bannon	Landers and Rogers

HER HONOUR:

1Mr Tassone, who is 54 years old and has a background of employment in building maintenance roles, applies under section 335(2)(d) of the Workplace Injury Rehabilitation and Compensation Act 2013 (“the Act”) for leave to issue common law proceedings for damages for pain and suffering in respect of an injury to the left leg and scarring to his lower legs. The injury was sustained on or about 14 September 2017 in the course of his employment with Pelligra Build Pty Ltd (“Pelligra”) when he was driving a knuckle boom machine onto a crushed rock surface. The machine jolted. Mr Tassone became airborne, then scraped both lower legs on the edge of the basket as he fell to the ground.

2The lacerations were sutured in the Emergency Department of Footscray Hospital. The right leg healed after five weeks or so, but the left leg wound broke down and had to be cleaned and dressed regularly by his general practitioner until December 2017. Mr Tassone was off work on Workcover payments in 2018 and 2019 and his employment was terminated in April 2018. He continued to suffer left leg pain and had a left knee arthroscopy in October 2020. He did not work during COVID, and resumed work in October 2022, working full time (more than 40 hours per week, with additional overtime) as a team leader in traffic management. This role pays more than his previous employment duties in construction, which a number of doctors (Mr O’Brien, Mr Riazi, Dr Brasier and Dr Fitzgerald) say he can no longer perform. His current role involves setting up signs, lights, and directing traffic around road works. He is able to lift light signs and bollards.

3His main physical complaint about the left leg is that once every month or so he suffers a painful cramping behind his left knee, for which he takes Panadol Forte. He has regular physiotherapy for the left leg. He is on his feet all day at work, and sits down when he suffers the cramp. He is able to perform some domestic duties but no longer uses a ladder, gardens, rides his jet ski, dances with his wife or hikes when on overseas holidays. He is very self-conscious about the scars on his legs, which he says are in a prominent position, large and unsightly, comparable to those in the case of Transport Accident Commission v Garcia.[1] He is embarrassed by the scars, which are sensitive to touch, and would like to cover them with tattoos, which is not possible because of the delicacy of the skin.[2] However, he still wears shorts in summer.

[1] [2015] VSCA 225.

[2] Joint Court Book (‘JCB’) 191.

4Mr Tassone says that the pain and suffering consequences of his left leg injury and/or the scarring to both legs meets the narrative test for serious injury.

The issue

5In relation to the injury to the left leg, the defendant says that the principal complaint is intermittent cramps which occur once a month or every few months, for which the plaintiff takes over-the-counter medication. He is able to perform his current work duties, including night shifts and weekend work, for which he is paid more than his previous employment. He has given up outside domestic maintenance, no longer plays golf (which he only did recreationally) or jet skis (which he did regularly on holidays), or dances when out with his wife (which he did about 6 times per year). The defendant says that these pain and suffering sequelae of any permanent impairment to the function of the left leg do not satisfy the narrative test for serious injury.

6The defendant concedes that there is scarring on the front of both legs, and that Mr Tassone is self-conscious about them, but says that the scars are not prominent or unsightly and that they do not prevent Mr Tassone from wearing shorts. For this reason, the pain and suffering consequences relied upon by Mr Tassone do not satisfy the narrative test for serious injury under sub-paragraph (1)(b) of section 325 of the Act.

Plaintiff’s evidence

7In his affidavits, sworn 19 June 2023[3] and 29 May 2024,[4] Mr Tassone complained of pain and cramping in his left calf when he squats, kneels or bends over to lift things up. He also stated that approximately once or twice a month he gets a cramp behind his left knee, for which he takes two Panadol Forte. He regularly attends physiotherapy, and he finds the treatment painful, but continues with it to try and build up muscle in his legs. He stated he is unable to run or jog.

[3] Ibid 186.

[4] Ibid 177.

8In his recent affidavit, Mr Tassone stated that he continues to suffer from pain and cramping in his left calf and occasionally gets a cramp underneath his left knee which he describes as a “spasm attack” that can come on while relaxing at home.[5]

[5] Ibid 197.

9In his oral evidence, Mr Tassone confirmed that his main physical issue is the cramping which is painful and which prevents him from returning to his pre-injury employment in construction.

10In cross-examination, he agreed that the left leg cramps are painful and occur intermittently every month or so. He said that in his current job he is on his feet all day. He agreed that he gets cramps occasionally when he sits down, or when on his hands and knees. He agreed that he is able to walk, kneel, squat, use stairs, do domestic work inside the house, jump, and do short runs. He gets a sore left knee after standing for 6 hours. He is still smoking 8 cigarettes per day (down from 11 per day) even though he has been told that his cramps might cease if he stopped altogether.

11Mr Tassone stated that he finds the scars on his legs are sensitive to touch and embarrass him. He has attempted to cover them with tattoos but is unable to because the skin is too sensitive. However, he still wears shorts in summer.

Evidence of treating practitioners  

Ms Jingyun Xue, Physiotherapist

12Ms Xue has been treating Mr Tassone on a weekly basis since April 2021. Two of her more recent reports were tendered.

13In her report dated 1 May 2023,[6] she noted that Mr Tassone had shown significant improvement with continuous physiotherapy treatment. He reported being largely pain free and that his left knee was feeling stronger than before. He had complained of cramps in his left knee from the end of 2021, but after seeing a specialist in 2022 he began using magnesium, oil massage and compression socks, and the cramps occurred less frequently as a result. However, he still complained of recurrent left knee stress and tightness after standing for over 6 hours a day. She noted that Mr Tassone was able to walk, kneel, squat and go upstairs and slopes. She remarked he had returned to work in traffic control in September 2022 and had suitable capacity to complete his work duties. She felt at the time he was incapacitated for his pre-injury work duties due to postoperative impairments and functional limitations, but that he would be able to gradually return to his pre-injury work duties by minimizing prolonged kneeling, squatting and heavy lifting and continuing with physiotherapy.

[6] Ibid 43.

14In her report dated 12 February 2024,[7] she noted the ongoing complaint of left knee muscle cramps and increased left knee joint stiffness after prolonged walking and standing. She considered this could be due to endurance deficit and accumulated muscle fatigue. She noted that Mr Tassone was able to squat, kneel, stand, walk and perform light lifting, and considered that he would gradually be able to return to modified pre-injury work duties, although he may permanently experience left knee stiffness, instability and patellar dysfunction.

Dr Alfred William, General Practitioner

[7] Ibid 50.

15In his report dated 29 February 2024,[8] Dr William noted that he first treated Mr Tassone for this injury on 18 September 2017 after his left leg wound had become infected. He treated the infection and had referred Mr Tassone to various specialists. He noted the arthroscopy performed by Mr Riazi. He concluded that although Mr Tassone’s injuries had impacted on his social, recreational and domestic activities, his condition had stabilised, his injury is not permanent, and he is able to return to his pre-injury duties.  

Mr Arash Riazi, Orthopaedic Surgeon

[8] Ibid 59.

16Mr Riazi provided two reports.

17In his first report dated 15 July 2022,[9]  Mr Riazi recorded that in 2020, Mr Tassone was experiencing tenderness over his scar, and painful spasms in the shin area which happened intermittently. Mr Tassone had an MRI scan on 26 June 2020. Mr Riazi considered that the left calf pain and swelling could be explained by a ruptured Baker’s Cyst and recommended a left knee arthroscopy, which he performed on 1 October 2020. During that surgery, he excised the scar or cyst and  injected cortisone into the area. He found that the medial collateral ligament was stable and intact, that there was significant scar tissue around the previous shin laceration with some tethering to the periosteum of his proximal left tibia.”[10] The surgery also revealed “mild grade 1-2 osteoarthritis in the medial compartment with deep chondral flaps behind the patella.”[11]

[9] Ibid 36.

[10] Ibid 37.

[11] Ibid 37.

18When Mr Tassone saw Mr Riazi in September 2021, he complained of cramping in his left calf. Mr Riazi felt the cramping could be due to a Baker’s cyst or a vascular issue caused by smoking. A doppler ultrasound was conducted and did not show any abnormalities, and no vascular injury was identified as a cause for the cramping. An MRI of the spine did not reveal any features that would explain his calf pain.

19Mr Riazi agreed with Mr Tassone’s treating rheumatologist Dr Bhattacharjee that the suturing and significant scarring and tissue tethering are likely to have made Mr Tassone more sensitive to mechanical tension and thus more prone to cramping. Mr Tassone was prescribed magnesium and quinine and electrolyte supplements. He was also advised to cease smoking, and if his condition did not improve, it was recommended that he commence a trial of Baclofen to address the cramps.

20Mr Riazi opined that Mr Tassone’s condition had stabilised and no further investigation would be required. He considered that there was no significant mechanical issue with his left knee, but noted that Mr Tassone felt that the intermittent cramping was a significant barrier to returning to pre-injury work.

21In his second report dated 8 April 2024,[12] Mr Riazi concluded that there may be some psychological overlay preventing Mr Tassone from returning to his pre-injury employment due to the pain and cramping and feeling of instability in his left leg and knee, and that these symptoms have also impacted on his social, recreational and domestic activities.

[12] Ibid 63.

22Mr Riazi noted that it was difficult to diagnose the exact cause of Mr Tassone’s cramping and pain, but felt that it may be due to a micro-vascular ischemia in conjunction with neuropathic pain. He considered that the muscle cramps might be alleviated if Mr Tassone stops smoking. He noted that Mr Tassone is somewhat self-conscious of his scars.

Dr Shom Bhattacharjee, Rheumatologist

23Dr Bhattacharjee saw Mr Tassone on 2 March 2022 by video telehealth and reported on 18 May 2022,[13] that the left leg cramps he complained of may have been caused by scar tissue causing sensitisation due to mechanical tension. Dr Bhattacharjee provided Mr Tassone with a number of treatment recommendations including oral magnesium supplements, topical magnesium spray, diluted Gatorade for electrolyte replacement and compression stockings. At that time, he considered it possible that Mr Tassone would be able to return to his pre-injury duties with ongoing symptom control.

[13] Ibid 33.

Medico-legal reports

Mr John O’Brien, Orthopaedic Surgeon

24Mr Tassone saw Mr O’Brien on 20 February 2024.[14] Mr O’Brien reported that there did not appear to be any substantial left calf pathology or intraarticular left knee pathology. He noted that the scarring appeared to be soundly healed and there was no apparent deep tissue tethering. He opined that the intermittent cramping may be the result of a soft tissue muscle injury. While noting Mr Tassone’s report that he obtained temporary benefit from massage, Mr O’Brien considered that no further treatment is required. Mr O’Brien concluded that Mr Tassone is capable of full-time employment with light duties and is “mildly limited”[15] in his social and domestic life as a result of the injuries.

Dr David Fitzgerald, Occupational Physician

[14] Ibid 54.

[15] Ibid 58.

25Dr Fitzgerald provided a report dated 11 March 2022.[16] He considered that Mr Tassone would be able to gradually return to most of his previous duties and hours. Given the irregular and infrequent nature of the cramping episodes reported by Mr Tassone, he considered that Mr Tassone required no further treatment before returning to work.

Dr Kilner Brasier, Occupational Physician

[16] Ibid 109.

26Dr Brasier provided a report dated 17 April 2024.[17] Mr Tassone complained to him of constant discomfort in his left calf, as well as muscle weakness and unsteadiness. He concluded that Mr Tassone is permanently incapable of returning to his pre-injury duties but has the capacity for his current alternate occupation. He recommended Mr Tassone avoid a number of movements and activities. He noted that Mr Tassone is prevented from pursuing his interest in golf and going on long walks with his wife.

Associated Professor Trevor Jones, General Surgeon

[17] Ibid 68.

27Associated Professor Jones reported on 28 December 2017[18] that Mr Tassone would be fit for a graduated return to his full pre-injury duties on 15 January 2018. He indicated that no further treatment was required and that Mr Tassone could  self-manage his symptoms. In a further report dated 9 January 2018,[19] he repeated this opinion, stating that the healed lacerations to Mr Tassone’s legs would not prevent him from returning to his pre-injury duties.  

Dr Tony Kostos, Rheumatologist

[18] Ibid 104.

[19] Ibid 108.

28Dr Kostos reported on 27 June 2024[20] that he received a complaint from Mr Tassone of cramps every one to two months in his left leg. Dr Kostos was unable to explain why the cramps were occurring, and suggested that it could be due to dehydration caused by working outside in hot weather. Dr Kostos considered that no further physiotherapy is needed for the left leg and that Mr Tassone could do exercises at home. Dr Kostos concluded that his prognosis in relation to the cramping was excellent. He conceded that the scarring continued to be an issue for Mr Tassone.

Dr Murray Stapleton, Plastic Surgeon

[20] Ibid 117.

29Dr Stapleton reported on 27 May 2024[21] that Mr Tassone’s wounds have stabilised and should require no further treatment. He stated that he did not believe Mr Tassone was capable of pre-injury employment due to the tenderness of the scars on his legs. He considered that tenderness of the scars would permanently affect Mr Tassone’s social, recreational and domestic activities.

[21] Ibid 92.

Findings and Reasons

30I found the plaintiff to be a straightforward witness. I accept that every month or two he suffers from cramps in the left leg which he finds painful, and for which he takes Panadol Forte. I accept that he did not suffer these cramps prior to the workplace injury. However, the actual cause of the cramping (whether due to dehydration,[22] or a Baker’s cyst,[23] or a vascular consequence of smoking,[24], or soft tissue muscle injury[25]) is not clear on the medical evidence, as there is no current radiological evidence of deep tissue tethering,[26] the presence of a cyst or any issue in the spine.  What is clear is that taking magnesium and other measures recommended by the rheumatologist had a beneficial effect on these cramps, and that Mr Tassone has been told to stop smoking by more than one physician. He has also been offered a trial of Baclofen to address the cramping. He has not followed these recommendations.

[22] Ibid 122.

[23] Ibid 37 and 66.

[24] Ibid 37, 39 and 66.

[25] Ibid 57.

[26] Ibid 57.

31In any event, taking his case at its highest, and accepting that the cramps represent a permanent impairment of the function of the left limb, I accept that he finds the cramps unpleasant and painful. I accept that these cramps have contributed (along with perceived left knee instability, which is not the subject of this application) to a reluctance to undertake activities such as gardening, climbing ladders, getting on a jet ski, dancing with his wife, playing golf, although it is not really clear (particularly in the light of the list of activities which the longstanding treating physiotherapist says he is capable of performing and the conclusion of the general practitioner that he is fit to return to his pre-injury duties) that they actually prevent these activities from being performed. I accept that these consequences are bothersome for Mr Tassone. However, I am not satisfied that these consequences are more than considerable when compared with other cases in the range of permanent impairments of a body function for a number of reasons. 

32First, the cramping is intermittent, only occurring every month or every few months. When it occurs he takes over the counter medication as required. The ongoing physiotherapy he has been receiving to date has not prevented the cramps, and was regarded as unnecessary by Mr Jones, Mr O’Brien and Dr Kostos. Secondly, the consequences of the cramping are very limited. He is currently employed in a higher-paying, less labour-intensive role which he enjoys (albeit less than the construction work he was doing) and which requires him to be on his feet all day. He manages to work additional shifts on nights and weekends for financial reasons. There is also limited interruption to his leisure activities. He only used to jet ski during the summer and engaged in hiking on overseas holidays every few years when finances would allow. He did not play golf regularly.

33In relation to scarring, I noted that Mr Tassone’s case was based on the appearance of his scars, rather than the impact of them on his functioning at work or at home or during recreation. I accept that the scars are visible. However, they are not particularly raised, prominent or unsightly. They were described as well healed by Mr O’Brien and Mr Jones, and Mr Stapleton did not refer to their appearance. I note that Mr Tassone agreed that he wears shorts in summer and does not seek to cover them. On the material before me, I am not satisfied that the pain and suffering consequences of the permanent disfigurement suffered as a result of his injury are more than considerable when compared with other cases in the range of possible permanent disfigurements.

Conclusion

34The plaintiff’s application is dismissed. I reserve the question of costs.